

USE OF THE HYPERIC HQ SOFTWARE ("SOFTWARE") IS PROVIDED ONLY UNDER LICENSE FROM HYPERIC LLC ("HYPERIC"). PLEASE READ THE FOLLOWING LICENSE CAREFULLY AND INDICATE YOUR ACCEPTANCE BY CLICKING THE ACCEPT BOX AT THE BOTTOM OF THE PAGE.

1. License Terms.

a. Personal Use. Subject to the terms of this Agreement, Hyperic grants to you a non-exclusive, non-transferable, license to use the Software solely for Personal Use in a non-production computing environment. Third party software products or modules supplied by Hyperic, may be used solely with the Software.

b. Restrictions on Use. You may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software. You may not lease, rent, resell or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement.

2. Limitation of Liability.

The Software is provided gratuitously and, therefore, Hyperic and its suppliers shall not be liable for any direct, indirect, incidental, special, punitive or consequential damages under any theory of liability whether in tort, contract, strict liability or otherwise even if advised of the possibility of such damages.

3. Intellectual Property Ownership.

Hyperic alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Hyperic Technology, the content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software, the Hyperic Technology or the Intellectual Property Rights owned by Hyperic. The Hyperic name, the Hyperic logo, and the product names associated with the Software are trademarks of Hyperic or third parties, and no right or license is granted to use them.

4. United States Government End Users.

The Software and any other software covered under this Agreement are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and any other software and documentation covered under this Agreement with only those rights set forth therein.

5. General.

a. Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.

b. Export Compliance. You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or Sudan, or (b) to anyone on the US Treasury Department's list of Specially Designated Nationals or the US Commerce Department's Table of Denial Orders. By licensing the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under control of, or a national or resident of any such country or on any such list.

c. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.

d. Governing Law and Venue. This Agreement will be governed by both the substantive and procedural laws of California, U.S.A., excluding its conflict of law rules. Any dispute regarding this Agreement will be heard in the state or federal courts having jurisdiction in San Francisco, California, U.S.A. and you agree that you shall be subject to the personal jurisdiction of such courts.

6. DEFINITIONS.

a. "Software" means the object code versions, extracts and/or derivative works of the software electronically downloaded from Hyperic's website upon acceptance of this Agreement, and the related Documentation.

